Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. F07903330, Carlos A. Cabrera, Judge.
Benjamin A. Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Dawson, J.
Following a bench trial, the court convicted appellant, Richard James Savala, of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and found that he admitted a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). On appeal, Savala contends the court erred when it: 1) ordered him to undergo testing for the AIDS virus; and 2) imposed a one-year prior prison term enhancement. We will find merit to Savala’s first contention and strike the order requiring AIDS testing. In all other respects, we will affirm.
All further statutory references are to the Penal Code, unless otherwise indicated.
FACTS
On April 24, 2007, Fresno police officers conducting a parole search at a house in Fresno contacted Savala in a shed on the property. During a consensual search of Savala the officers found a small amount of rock cocaine in a container.
Savala was subsequently charged with possession of cocaine base, a prior prison term enhancement, and allegations that he had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)).
On December 18, 2007, a bench trial in this matter began. After the testimony on the substantive offense concluded, the following colloquy occurred:
“MS. GARCIA [THE PROSECUTOR]: I think I still have to address as part of the evidence [--] the prior.
“THE COURT: The prior?
“MS. GARCIA: Yes, the prior.
“MR. CRIEGO [DEFENSE COUNSEL]: In light of the exhibits[,] I believe the People intend to present these exhibits marked as One and Two.
“MS. GARCIA: Yes.
“MR. CRIEGO: My Client will stipulate that Exhibits One and Two correctly portray his prior conviction.
“That is correct, sir?
“THE DEFENDANT: Yes.” (Italics added.)
At the end of the hearing the court continued the matter to January 10, 2008. On that date the court found Savala guilty of possession of cocaine base. After Savala waived time for sentencing, the following colloquy occurred:
“THE COURT: [¶] ... [¶] The defendant in this case has been convicted of [a] violation of [Health and Safety Code] section 11350. He has admitted a prior strike conviction and the same offense was also prior prison commitment. The court has considered the factors in the information in the probation report. Is there anything -- any corrections or additions that need to be pointed out at this time?
“MR. CRIEGO: No, your honor.
“MS. GARCIA: No.
“THE COURT: By the People?
“MS. GARCIA: No, Your Honor.” (Italics added.)
Savala did not say anything. The court then struck the prior strike conviction allegations and sentenced him to the mitigated term of one year four months and a one-year prior prison term enhancement for an aggregate term of two years four months.
The following colloquy then occurred:
“MS. GARCIA: Your Honor, during the court trial[,] I believe the --- we offered up the stipulation regarding the strike and prison prior. Does the court consider that an admission?
“THE COURT: Yes.
“MS. GARCIA: Thank you.” (Italics added.)
Neither Savala or his defense counsel said anything at that point.
DISCUSSION
The AIDS Testing Requirement
Section 1202.1 requires the court to order AIDS testing for defendants who are convicted of certain enumerated sex offenses. (§ 1201, subd. (a).) During sentencing, the court ordered Savala to undergo testing for the AIDS virus. The parties agree the court erred in ordering Savala to be tested for the AIDS virus because he was not convicted of a sex offense. We agree with the parties and will reverse the court’s order.
The Prior Prison Term Enhancement
Savala contends his prior prison term enhancement must be stricken because the court did not make an express or implied finding that he suffered a prior conviction within the meaning of section 667.5, subdivision (b). We will conclude Savala forfeited his right to raise this issue on appeal.
During one colloquy, the court stated that Savala admitted the prior prison term enhancement. When the court then asked defense counsel if there were any corrections or additions that needed to be pointed out, Savala stood silently as his defense counsel stated there were none. At the conclusion of the hearing when the court told the prosecutor that he considered the defense’s stipulation to be an admission of the strike and prior prison term enhancement allegations, neither Savala or his defense counsel said anything. The record thus shows that Savala and his defense counsel each acquiesced twice to the court finding that defense counsel’s stipulation amounted to an admission of the strike and prior prison term enhancement allegations. However, Savala may not acquiesce in the court’s finding that his stipulation amounted to an admission of the prior conviction allegations and then raise as an issue on appeal that he did not admit the allegations. (Cf. People v. Maxey (1985) 172 Cal.App.3d 661, 668 [defendant may not stand silently by or acquiesce in a finding that his prior burglary was theft related and then contend on appeal that it was committed without the intent to commit a theft].) Accordingly, we conclude Savala forfeited his right to challenge on appeal the validity of his admission of the prior prison term enhancement.
Nevertheless, even if this issue were properly before us, we would reject it. A defendant is bound by the stipulation of his counsel. (People v. Pijal (1973) 33 Cal.App.3d 682, 697.) Further, “generally an admission of a prior conviction allegation admits all elements of the prior conviction and all elements of offenses necessarily included in the prior conviction offense, just as a plea of guilty admits every element of a charged offense. [Citation.]” (People v. Watts (2005) 131 Cal.App.4th 589, 594-595.)
Defense counsel’s stipulation that the records adequately described Savala’s prior conviction is ambiguous in that it is unclear whether this statement was intended by counsel as a stipulation that Savala admitted the truth of the three strikes and enhancement allegations or simply as a stipulation that the prosecution’s records were admissible. The court and the prosecutor interpreted the stipulation as an admission by Savala of the prior conviction allegations and Savala and his defense counsel acquiesced twice to this interpretation by the court. Accordingly, since the court interpreted the stipulation as an admission of the prior conviction allegations and the record discloses the parties intended the stipulation as an admission of these allegations, alternatively we conclude Savala admitted these allegations through his defense counsel’s stipulation. Further, Zavala’s admission of the prior prison term allegations obviated the need for the court to find the enhancement true before imposing it. (Pen. Code, § 667.5, subd. (d) [“The additional penalties provided for prior prison terms shall not be imposed unless they are ... admitted or found true …”].) Accordingly, we reject Savala’s contention that the court erred when it imposed a prior prison term enhancement.
DISPOSITION
The judgment is modified to strike the court’s order requiring Savala to be tested for the AIDS virus. The trial court is directed to issue an amended abstract of judgment that incorporates this modification and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.